HQ 0951734 - Protest No. 2904-92-100054; "Santa's Marching Band"; "Bells of Christmas"; Electric Musical Bell Garlands; Explanatory Note 95.05(A)(1) and (2); Chapter 95, Note 1(t); Explanatory Note 85.43(13); GRI 3; Explanatory Note 3(b)(VIII); HQ 950201; Heading 9208; Explanatory Note 92.08(I); Heading 8306; Heading 9405; 9505.10.25; 9505.10.50 - United States International Trade Commision Rulings

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HQ 951734
February 19, 1993

CLA-2 CO:R:C:M 951734 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8543.80.90

District Director
U.S. Customs Service
511 N.W. Broadway
Federal Building
Portland, OR 97209

RE: Protest No. 2904-92-100054; "Santa's Marching Band"; "Bells of Christmas"; Electric Musical Bell Garlands; Explanatory Note 95.05(A)(1) and (2); Chapter 95, Note 1(t); Explanatory Note 85.43(13); GRI 3; Explanatory Note 3(b)(VIII); HQ 950201; Heading 9208; Explanatory Note 92.08(I); Heading 8306; Heading 9405; 9505.10.25; 9505.10.50

Dear Sir:

This is our response on Application for Further Review of Protest No. 2904-92-100054, dated March 9, 1992, concerning your action in classifying and assessing duty on certain electric musical bell garlands under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise is described as the "Bells of Christmas" and the "Santa's Marching Band" electric musical bell garlands. The "Bells of Christmas" is comprised of ten brass bells, each containing an electronic module which, when activated, chimes fifteen Christmas songs. When the device is on, a light bulb, at the bottom of each bell, flashes regardless of whether the carols are playing. The garland is powered by an A/C adaptor. It can be strung on a Christmas tree or displayed, for example, along a mantlepiece.

The "Santa's Marching Band" is comprised of a string of eight rubber musicians standing on plastic drums which, through the operation of an electronic device, turn and strike a total of sixteen (two bells per musician) brass bells. By striking the bells in various orders, the musicians can play a total of thirty- five Christmas carols. Each musician possesses a small lamp which flashes as the musician strikes a bell. The system is attached to a plug-in lead power cord. The garland can be strung on a Christmas tree or displayed, for example, along a mantlepiece.

ISSUE:

Whether the "Bells of Christmas" and the "Santa's Marching Band" are classifiable under heading 9505, HTSUS, as articles for Christmas festivities, under heading 9405, HTSUS, as lighting sets for Christmas trees, under heading 8543, HTSUS, as electrical machines and apparatus, or under heading 8306, HTSUS, as statuettes and other ornamental articles of base metal?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

The merchandise was entered under subheading 9505.10.25, HTSUS, which provides for: "[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: [a]rticles for Christmas festivities and parts and accessories thereof: [c]hristmas ornaments: [o]ther: [o]ther."

However, the entry was liquidated under subheading 9505.10.50, HTSUS, which provides for: "[a]rticles for Christmas festivities and parts and accessories thereof: [o]ther: [o]ther."

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (August 23, 1989). Explanatory Notes 95.05(A)(1) and (2) (p. 1590) state that:

[t]his heading covers:

(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-
durable material. They include:

(1) Decorations such as festoons, garlands, Chinese lanterns, etc., as well as various decorative articles made of paper, metal foil, glass fibre, etc., for Christmas trees (e.g., tinsel, stars, icicles), artificial snow, coloured balls, bells, lanterns, etc. Cake and other decorations (e.g., animals, flags) which are traditionally associated with a particular festival are also classified here.

However, chapter 95, note 1(t), HTSUS, states that:

1. This chapter does not cover:

(t) Electric garlands of all kinds (heading No. 94.05).

Because the subject garlands are electric garlands, under chapter 95, note 1(t), HTSUS, they are precluded from classification under heading 9505, HTSUS.

We find that the garlands are composite goods consisting of different components and are both described under headings 9405, 8306 and 8543, HTSUS. The garlands are described under heading 8306, HTSUS, which, in part, provides for: ". . . statuettes and other ornaments, of base metal . . .", under heading 8543, HTSUS, which provides for: "[e]lectrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter", and under heading 9405, HTSUS, which, in part, provides for: "[l]amps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included . . ." We note that Explanatory Note 8543(13) (p. 1402) states that:

[t]he heading includes, inter alia:

(13) Electric musical modules for incorporation in a wide variety of utilitarian or other goods, e.g., wrist watches, cups and greeting cards. These modules usually consist of an electronic integrated circuit, a resistor, a loud speaker and a mercury cell. They contain fixed musical programmes.

GRI 3 states that:

[w]hen, by application of 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to a part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

Because both garlands are composite goods made up of different components which are described under different provisions of the HTSUS, those headings are to be regarded as equally specific under GRI 3(a). Therefore, GRI 3(a) fails in establishing classification, and GRI 3(b) becomes applicable. Because the garlands are composite goods, under GRI 3(b), we must determine their essential character.

Explanatory Note 3(b)(VIII) (p. 4) states that:

[t]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
It is our position that the essential character of the "Bells of Christmas" is imparted by the electronic module which, when activated, chimes 25 Christmas carols. We find that the electronic module possesses the primary function in relation to the use of the garland. Although the garland flashes lights whether or not the electronic module is activated, it is marketed as "Bells of Christmas" and it is purchased in order to provide Christmas carols during the holiday season. See HQ 950201, dated November 15, 1991.

The essential character of the "Santa's Marching Band" is imparted by the electronic device which, depending on the selected song, directs the musicians to strike the bells in order. We find that the flashing lights have a secondary, ornamental purpose.

Concerning the classification of the both garlands, it has been suggested that Explanatory Note 92.08 is dispositive. In part, heading 9208, HTSUS, provides for musical boxes. Explanatory Note 92.08(1) (p. 1562) states in part that:

[a]rticles which incorporate a musical mechanism but which are essentially utilitarian or ornamental in function . . . are not regarded as musical boxes within the meaning of this
heading. These articles are classified in the same headings as the corresponding articles not incorporating a musical mechanism.

It is our position that Explanatory Note 92.08(1) does not apply to the classification of the merchandise. No claim has been made that the garlands are musical boxes classifiable under heading 9208, HTSUS. Because there is no language present which applies Explanatory Note 92.08(I) to other provisions in the HTSUS, it is not relevant to the classification of the merchandise. As has been stated, both garlands are composite goods consisting of a statuette or other ornamental article of base metal, a lighting set, and an electronic module or device. It is our position that the electronic module or device imparts the essential character of both garlands.

Consequently, we find that both the "Bells of Christmas" and the "Santa's Marching Band" are classifiable under subheading 8543.80.90, HTSUS, which provides for: "[e]lectrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: [o]ther machines and apparatus: [o]ther."

HOLDING:

The "Bells of Christmas" and the "Santa's Marching Band" are classifiable under subheading 8543.80.90, HTSUS.

You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director

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